An employer had a privacy policy that stated:

• Privacy of Communications
  
• Employees may not record telephone or other conversations they have with their coworkers, managers or third parties unless such recordings are approved in advance by the Legal Department, required by the needs of the business, and fully comply with the law and any applicable company policy.
  

A sales associate challenged this rule after he attended a termination notice meeting for another employee and recorded audio of the meeting on a company-owned phone without management’s prior knowledge.

The store manager suspected that the employee might have recorded the meeting and contacted human resources department for guidance.  The manager was instructed to retrieve the phone, delete the recording and counsel the employee on company policy. The employee who was counseled filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”).

During the last week in April 2017, a NLRB administrative judge ruled that the employer interfered with employees’ labor rights with an overly broad privacy rule.

The judge found that the rule was in violation of Section 8(a)(1) of the National Labor Relations Act (Act) which prohibits employers from interfering with Section 7 rights. Section 7 gives employees the right to organize and engage in other concerted activity for the purpose of collective bargaining.

The employer argued that its policy was in place to protect the privacy of customer information. The judge recognized that the employer has a pervasive and compelling interest in protecting customer information.  However, the judge explained that the issue is whether the rule is overly broad when balancing this compelling interest against employees’ Section 7 rights. 

The judge ruled that the employer’s rule was overbroad and thus illegal.

• “First of all, it is not limited to work time and/or conversations in work areas, or even conversations on [the employer’s] premises. Secondly, [the employer] could protect its substantial interests with a much narrower rule, e.g., that makes it a violation of company policy to record in any manner customer information or data."
  

 
The judge relied on recent NLRB decisions which ruled that protected conduct may include “recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” The judge noted that photographs or recordings, often covert, are an essential element in vindicating the underlying Section 7 right.

Therefore, the employer was ordered to rescind its Privacy of Communications Rule, post a paper notice for 60 days in conspicuous places and also distribute the notice electronically, such as by email, and posting on the company website.  These notices state “the National Labor Relations Board has found that we violated Federal labor law” and directed the employees to a phone number at the NLRB if they want to file future unfair labor practice charges.

By the way, this was not some Mom-n-Pop business that was found to have an illegal privacy rule…it was AT&T.

Florida businesses are cautioned that this ruling fits a trend of NLRB decisions the last few years finding work rules to be illegal which prohibit photography and other forms of recording in the workplace. The NLRB does not always ban all rules restricting workplace recordings, but if the rules are broad and contain a blanket ban on all workplace recordings, they most likely will be found to be illegal.

In Florida there is a law which makes it illegal to record a conversation without all of the parties to the communication having given prior consent. Fla. Stat. § 934.03.

If you need any assistance in this area, please email or call the Law Office of David Miklas, P.A. at 1-772-465-5111.

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Law Office of David Miklas, P.A.